The Court of Appeal for
this district has upheld a multimillion dollar award against the Vons Companies
for sexual harassment and retaliation.

The court
Tuesday affirmed a Ventura Superior Court judgment in favor of fired grocery
clerk James Stevens against the chain. Stevens was awarded $2.4 million in
compensatory and punitive damages, and his attorneys were awarded more than
$750,000 in fees.

Presiding
Justice Kenneth Yegan, writing for Div. Six, said Stevens had produced
sufficient evidence for a jury to conclude that he was fired because he had
complained about inappropriate conduct by a store manager. Stevens charged that
the reason given by the company—that he violated policy by giving unsalable
merchandise to charity instead of returning it to headquarters—was a pretext.

Stevens was
the inventory control clerk at a store in Simi Valley when he complained in 2002 that manager Laura
Marko was harassing him. Marko, he claimed, made false charges that he had
called her at home and made inappropriate comments, and had called him a
“pervert.”

Evidence
showed that after Stevens complained to the personnel department, six
employees, in addition to Stevens and Marko, were interviewed. The
investigators determined that the complaints were unsubstantiated and that it
would be in the company’s interests if both employees were transferred to other
stores.

They also
noted that Stevens could be moved immediately due to an opening at another
store, but that it was “operationally not possible” for Marko to be transferred
right away. Marko remained at the store for a year before quitting the company.

A district
manager overseeing the two stores and 18 others around the county testified
that he transferred Stevens on the recommendations of the personnel department,
but that Marko was not transferred because there was no “appropriate facility”
to send her to. He said he was aware that several persons had complained about
inappropriate sexually oriented behavior by Marko, but had not disciplined her
because that was not his responsibility.

He did,
however, along with a member of the personnel department, issue a written
warning to the assistant manager of the store for failure to take “corrective actin
in response” to Marko’s comments.

Stevens,
whose complaint alleging that the transfer was retaliatory was rejected by the
Fair Employment and Housing Commission, was fired in 2004 after 26 years with
the company. The ostensible reason was that he had given company products, to
the representative of a local church.

Company
policy, according to the testimony, was that employees were allowed to donate
damaged or expired merchandise if it was “direct store distributor,” or DSD,
merchandise—products delivered to the stores directly by the vendors, who
consent in advance to credit the company and allow the merchandise to be
donated.

Products
delivered in Vons trucks, however, including private label merchandise, could
not be donated and had to be returned to the company’s product recovery center.

The
district manager said he fired Stevens after being presented with evidence by
other employees that Stevens had donated private label water and coffee beans,
valued at around $76, to the church, which had been receiving donations from
the store for more than 10 years.

The jury
found for the plaintiff on his claim for sexual harassment, which it found to
have been ratified by the district manager. It rejected his claim that his
transfer was retaliatory, but found that his subsequent firing was, and awarded
more than $1.7 million in compensatory and more than $16 million in punitive
damages, which the trial judge cut to $1.2 million as compensation and an equal
amount in punitive damages.

The judge
also awarded more than $750,000 in attorney fees to the firms of Allred, Maroko
& Goldberg and Davis*Gavsie, including multipliers based on the complexity
of the case and the fact that the Davis*Gavsie lawyers worked without pay on the case
for three years.

Yegan,
writing for the Court of Appeal, said there was substantial evidence from which
the jury could conclude that Stevens, given the length of his employment and
the fact that he received consistently positive employment evaluations prior to
his sexual harassment complaint, would not have been fired solely for giving a
small amount of expired merchandise to charity, particularly because the
company acknowledged that Stevens had no connection to the church and never
gave him an opportunity to explain the donation.

The justice
went on to say that the fee award was not excessive because it was within the
trial judge’s discretion to award the multipliers.